Public Bill Committee

[Mr Lee Scott in the Chair]
Written evidence to be reported to the House
TPIM 04 Liberty

Schedule 1  - Terrorism prevention and investigation measures

Gerry Sutcliffe: I beg to move amendment 14,in schedule 1, page16,line8, after ‘a’, insert ‘curfew’.

Lee Scott: With this it will be convenient to discuss the following:
Amendment 3,in schedule 1, page16,line8, leave out
‘overnight or at particular times overnight’
and insert
‘at any time but not exceeding 16 hours in any 24’.
Amendment 15,in schedule 1, page16,line10, at beginning insert ‘curfew’.
Amendment 4,in schedule 1, page16,line10, leave out
‘overnight or at particular times overnight’
and insert
‘at any time but not exceeding 16 hours in any 24’.
Amendment 5,in schedule 1, page16,line11, at end insert—
‘(1A) For the purpose of sub-paragraph 1(1) the meaning of overnight shall be from 6.00 pm to 10.00 am.’.
Amendment 6,in schedule 1, page16,line11, at end insert—
‘(1A) For the purpose of sub-paragraph 1(1) the meaning of overnight shall be from 6.00 pm to 8.00 am.’.
Amendment 7,in schedule 1, page16,line11, at end insert—
‘(1A) For the purpose of sub-paragraph 1(1) the meaning of overnight shall be from 6.00 pm to 6.00 am.’.

Gerry Sutcliffe: Good morning, Mr Scott, and I wish members of the Committee good morning.
To recap, in Thursday’s discussions, the Opposition view was that the early part of the Bill is the meatier one in relation to the issues that we face. Our contention is that the Government could introduce amendments to the Prevention of Terrorism Act 2005, which would deal with those issues more tidily. That was not, however, the Minister’s view, and we had a useful discussion of the changes in the Bill’s proposals.
The Government contend that those changes do not pose a significant risk to the public: if there is an increased risk, it is mitigated by the resources that will be given to the police and the security services to deal with that risk. Our concern is that we do not want a lessening of the risk, particularly when there might be more high-profile attacks—for example, with the Olympics and the Paralympics—and opportunities for those who wish us harm to do us harm. We are firm in wanting to ensure that protections are in place.
The schedule is the meat of the regime for terrorism prevention and investigation measures, as it enables a whole raft of measures to be imposed, including measures on overnight residence, travel, exclusion, movement directions, financial services, property, electronic communications, association, work or studies, photography and monitoring measures, many of which we will discuss this morning.
The first group of amendments concerns curfews. I well remember the House being what I can only describe as full of laughter when the Home Secretary, in either a statement on the counter-terrorism review or on Second Reading, spoke about home residence and the overnight requirement. As far as I am concerned, that is a curfew. Whichever way the Minister dresses it up, it is a curfew. In their evidence, Mr Osborne and the Director of Public Prosecutions said that, regardless of the fact that we all want prosecutions, which is the first port of call, we need to achieve consistency and an understanding of the measures that are in place, and that the police and security services were comfortable—“comfortable” might not be the right word, but I will use it—with the way in which control orders were adopted.
On the overnight residence requirement, the Government are changing the language—I know that the hon. Member for Cambridge will not agree with this—just to satisfy or placate the Liberal party. Under their consensual agreement, they are changing the terminology, so that it does not look so harsh. However, we are talking about ensuring that people who pose a threat to our society in the ways that we have all seen over the recent past are restricted in their movements at home. Later, we will discuss amendments relating to accommodation, and whether measures should be agreed or be introduced at the Secretary of State’s direction.
Why is there a need for the name change in having an overnight residence requirement as opposed to a curfew? Why is there no definition of the time frame of that curfew in the Bill? We have tabled amendments on possible time frames. What is the Government’s thinking about the, in my view, lessening of the current position?

Stephen Phillips: I do not know the previous legislation intimately, so will the hon. Gentleman help me by saying what the limitations were on a curfew under the control order regime?

Gerry Sutcliffe: The curfew was an overnight requirement in which a fixed number of hours could be fitted to an individual’s case. [ Interruption. ] The hon. and learned Gentleman had said that he did not know about the previous legislation; if he is now saying he does, what is the point of the question?

Stephen Phillips: I asked for clarification, because it was my understanding that there was no limit on how long a curfew could last and that, as the legislation was framed, it could last for a 24-hour period.

Hazel Blears: It would have to be a derogating order.

Gerry Sutcliffe: I am sure that my right hon. Friend the Member for Salford and Eccles, who was responsible for introducing the relevant Bill, can advise the Committee on what the position was. I understand that one reason why control orders were a problem, and why we have included an hours limit in our proposals, was that there was a challenge from the courts, which deemed that the number of hours required was legally unacceptable.

Tom Brake: The hon. Gentleman has concerns about there being no definition of “overnight.” Will he remind the Committee how many times the matter of curfews and the definition of that term had to go to court under the control orders regime?

Gerry Sutcliffe: Again, I do not know the answer to that—perhaps the Minister can tell the Committee, with support from his officials. I am trying to make the point that the name change is cosmetic, particularly when the security services need consistency. We heard from Mr Osborne that it will take 12 months to put all the required assets in place, such as electronic surveillance and the training of individuals, so we would expect consistency in the Bill. The Minister must know that the Legal Aid, Sentencing and Punishment of Offenders Bill will receive its Second Reading tomorrow. It will impose more restrictions on young offenders than this Bill will impose on terrorists.

Hazel Blears: That is a really important point for the Committee and the Minister to address. Clause 60 of the Legal Aid, Sentencing and Punishment of Offenders Bill provides for the curfew period that can be attached to a community sentence or a suspended sentence to be increased from 12 hours to 16 hours. On the face of it, the Government’s position seems entirely inconsistent, because curfew provisions for anti-social behaviour are likely to be more draconian than such provisions for terrorism.

Gerry Sutcliffe: I am grateful to my right hon. Friend for pointing that out. The onus is on the Minister to respond.

Julian Huppert: I do not have the Legal Aid, Sentencing and Punishment of Offenders Bill in front of me. Will the hon. Gentleman confirm that the big difference is that people who get a sentence have been convicted and that terrorists who have been convicted will get a jail sentence, which is rather more permanent than any of these measures. If they have not been convicted, it is entirely different.

Gerry Sutcliffe: I do not agree. The hon. Gentleman makes a point about conviction, which we have discussed in previous debates. Our concern is to ensure consistency in managing risks. You may say that I am mixing things up, Mr Scott, but I do not think I am.

Paul Goggins: My hon. Friend is not mixing up things. It is true that there have been many challenges in the courts on curfews and control orders, but the courts have come to a settled view, which view is reflected in the Legal Aid, Sentencing and Punishment of Offenders Bill, to which my right hon. Friend the Member for Salford and Eccles referred. Up to 16 hours is regarded as permissible. By introducing the concept of “overnight”, which is a vague, nebulous definition, the Government have confused matters. My hon. Friend is right to point that out.

Gerry Sutcliffe: I am reassured by my right hon. Friend’s view that I am not mixing things up and that I have a strong point that the Minister must answer.

James Brokenshire: We will have that debate at the right time. Will the hon. Gentleman confirm whether it is now Labour party policy not to draw a distinction between a preventive civil order and a civil punishment? That is what he seems to be suggesting.

Gerry Sutcliffe: We are not saying that. I am simply drawing a comparison with the Legal Aid, Sentencing and Punishment of Offenders Bill, which receives its Second Reading tomorrow, with the need to change the framework and with how a curfew might be defined.
On page 7 of the explanatory notes, paragraph 40 states:
“The term ‘overnight’ is not defined in the Bill, but as a matter of public law the period would need to fall between hours which a reasonable person would consider ‘overnight’. This contrasts with the position under control orders, where current case law allows for the imposition of a curfew of up to 16 hours’ duration per day.”

Tom Brake: The hon. Gentleman seems to desire consistency—in other words, a fixed period of time by which “overnight” would be defined. Does he not agree that it should be down to the security services and the police to define what an appropriate overnight condition might be? By arbitrarily setting it at a particular number of hours, that may become the default rather than ensuring that the security services and the police select the overnight period that is appropriate to the individual’s circumstances.

Gerry Sutcliffe: I am talking about managing risk and the Secretary of State making it clear what is required. The explanatory notes state that there may be an occasion when an individual is allowed to go to an event when they would
“normally be required to remain in the residence”.
What that event might be is a matter of judgment. Can the Minister tell us what type of event he thinks might be allowed? The measures seem to be lightening our grip on the individuals concerned. It is important properly to manage the risk, which involves extra costs and resources, but perhaps that is a step too far. I know that that belief is not shared by the coalition Government. I want the Minister to explain what type of event would allow the individual to be released from curfew in their accommodation to attend it? What event could be so serious? We will discuss accommodation later.

Julian Huppert: Given that we are talking about people who have not been convicted, a family wedding might be a reasonable event for someone to attend on a particular occasion.

Gerry Sutcliffe: It would depend what time the wedding was. I have no objection to an individual going to a wedding. However, we need to consider the number of variations. The coalition Government contend that this is a strong regime, yet we are talking about individuals who would do us harm. In serious cases, such individuals pose a great threat, but cannot be prosecuted. There should be an air of caution. It is the Government’s duty to protect the majority and prevent the minority causing us problems.
The amendments define a curfew rather an overnight residence. “Curfew” would be consistent throughout the legislation relating to measures against individuals. The amendments also relate to the hours that could be made available. I will listen with interest to what the Minister has to say about making sure that the public are protected, and what his views are on the issues raised by the amendments.

Paul Goggins: I welcome you to the Chair, Mr Scott, on our third day of deliberations. I want to concentrate my remarks on amendment 3 and amendments 4 to 7. My view is that we should either remove the requirement that the residence measure can apply only overnight, or, if the Committee is not minded to follow my preference, we should at least define what we mean by “overnight”. My first point develops the observations that my hon. Friend the Member for Bradford South has already made, and they reflect the main theme that emerged from our deliberations last Thursday. If the requirements set out in schedule 1 represent a loosening of the conditions available to the Secretary of State or the Department on suspects subject to TPIMs, it is undeniable that the risk increases. The risk can be mitigated, but it is essential to remember that mitigation is not the same as elimination, as Lord Howard reminded us when he gave evidence to the Committee. To mitigate that risk, there is a requirement for additional resources, because there will be a requirement for more surveillance teams, as Stuart Osborne told us when he gave evidence.
It is important to remember that, as we begin the next phase of our deliberations—the key phase—looking at schedule 1, a loosening of the conditions means a greater risk, which can be mitigated, not eliminated. That mitigation will require significant additional resources.

Tom Brake: The right hon. Gentleman is right to state that because relocation is no longer available, the risk is greater. However, would he agree that the Government have put in place surveillance measures that compensate for that? Rather than just stating that the risk has increased, he should acknowledge that the additional surveillance measures that are being put in place will address that additional risk.

Paul Goggins: I do not accept what the hon. Gentleman has said. Yes, the risk will be increased. Yes, the Secretary of State has made it clear that she is committing additional resources to the measure. She quoted the director general of the Security Service on Second Reading saying that that would mitigate—not eliminate—the risk. There was no comment on whether that risk would be reduced to the level under control orders. I applaud the Home Secretary for putting those additional resources in, but I am sceptical as to whether they will be sufficient, given the loosening of the requirements in the Bill, but I will be looking at the measure closely.
I find it curious—this is a philosophical point and although I am not much of a philosopher, I will stray that way—that those who argued from a philosophical point of view on civil liberties that we need to ensure that we do not encroach too far on to civil liberties and that the demands and requirements of legislation such as this should be reduced to an absolute minimum are prepared to see an increase in the level of surveillance on those individuals. The hon. Gentleman reflected that in his comments.
In other words, a set of conditions that are clearly spelled out in the control order or TPIM, which the suspect understands and can challenge in the courts if necessary, are being replaced with hidden and secret surveillance, which must necessarily take place if those conditions are not applied. I find it curious that those who are advocating greater civil liberties want to see a system where there is more, rather than less, surveillance.
 Several hon. Members  rose—

Paul Goggins: I thought that might excite hon. Members.

Julian Huppert: As one of the people who would like more civil liberties, the point is that we want a prosecution, if possible. That is the correct way to reduce civil liberties as appropriate. Surveillance would be intended ideally to lead towards that prosecution, rather than to what is essentially an open-ended punishment, for which the right hon. Gentleman seems to be arguing.

Paul Goggins: I am sure we will have enough time for our deliberations, but I would hate it if we ran out of time for considering all the important elements of the Bill because we kept returning to whether we want prosecutions. Of course we want prosecutions. That is the starting point and always has been the starting point in control order legislation. It will be the starting point for TPIMs. It is not an issue that Opposition Members contest. Can we please just put that to one side and stop returning to it? It is agreed territory between all parties in Committee. All I am pointing out is that every hour less on a curfew or an overnight residence requirement is an hour more of surveillance. That seems to be an interesting rebalancing of civil liberties—replacing something that is seen, understood, known and spelled out in the law with something that is not seen.

Tom Brake: Where does the right hon. Gentleman feel the balance lies from a civil liberties perspective if we contrast house arrest, which means that someone cannot go about their daily business, with additional surveillance, which at least allows someone to pursue matters, whether it is work, a course or appropriate meetings? Where does he think the balance lies?

Paul Goggins: Clearly, the balance lies in different places in different cases. My concern is that what we mean by “overnight” when we talk about an overnight residence requirement is not spelled out. That could mean a loosening of conditions, which could constrain the Home Secretary if she seeks to impose conditions that are required in a particular case.
I will explain a little more about the case law, which is extremely important. I hope that the Minister will have something specific to say about case law when he winds up. If he is not prepared to accept amendments, will he at least offer some reassurance to, not just the Committee, but the wider public, that when he says “overnight”, he means something substantial?

Hazel Blears: Before my right hon. Friend moves on to a detailed exposition of the case law, which I have no doubt he intends to do, I want to take up the point on surveillance. Does he agree that control orders have an element of disruption and are not simple surveillance, and that simply relying on surveillance will not mitigate the risk? If an attack were to come to a climax, surveillance itself would not be sufficient to mitigate the risk.

Paul Goggins: My right hon. Friend is absolutely right. The requirements in control orders and TPIMs control the whereabouts and movements of an individual suspect. Surveillance merely follows that suspect as they go about whatever they do. An event could happen quickly and the security services might not be in a position to disrupt it.

Ben Gummer: It would be good if the right hon. Gentleman did not pick and choose from what Mr Osborne said. Mr Osborne was quite clear when he said that
“with sufficient resources, we would be able to mitigate that risk.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 14, Q43.]

Paul Goggins: I acknowledge that, and I pay great tribute to Mr Osborne for the work that he and his colleagues do. However, he said that he could mitigate the risk. Jonathan Evans, in the quotation from the Home Secretary, also says that he can mitigate the risk. That does not give us a defined position. People say that they can lessen the risk, but we have all acknowledged that the risk will increase if the requirements on the individual suspect become less stringent.

Ben Gummer: This is an important point. The right hon. Member for Salford and Eccles said earlier that the risk would not be mitigated by TPIMs and surveillance, and the right hon. Gentleman just agreed with her. It is important that everyone recognises what Mr Osborne said, which was that the risk would be mitigated, given additional resources.

Paul Goggins: The point that my right hon. Friend the Member for Salford and Eccles was making is that the conditions in a control order or a TPIM can control the movements and whereabouts of an individual suspect—that is crucial. Outside the periods when those controls are in place, the police and the Security Service can operate surveillance, but that is something that follows an individual rather than disrupts their behaviour. That was my right hon. Friend’s point and I agree with it.
I do not underestimate the size of the challenge that the police and the Security Service face. They have my absolute and unequivocal support, because they do a tremendous job. However, when they are faced with questions from Members of Parliament and Ministers, and additional resources have been put in, of course they will say that they are able to mitigate the risk. We need to weigh carefully the word “mitigate”. It is not “eliminate”, but in any event, one can never eliminate the risk that people pose. Frankly, we will know only in time the degree to which there has been mitigation.

Gerry Sutcliffe: I am listening to my right hon. Friend’s argument about mitigation. He will remember what Lord Howard and Mr Osborne said about losing the power of relocation, which will make things more difficult for surveillance.

Paul Goggins: My hon. Friend looks ahead to what I am sure will be an interesting discussion on relocation, which, as important as conditions are, is probably the key issue with which the Committee has to grapple. Hopefully we will do so in an open and honest way and deal with some of the deficits that the inability to relocate will create.
I will press on with the problem with “overnight” and some of the difficulties that the lack of a definition will cause for the police and the Security Service. I am sure that the Minister will have plenty to say about this, but it seems clear to me that the intention behind introducing “overnight” as part of the residence requirement is to lessen the period over any 24 hours in which someone is required to be in a particular place. That will increase the amount of time that they can be out and about and able to associate, albeit that provisions elsewhere in the Bill will place restrictions on association and the ability to go to certain places. There will certainly be more hours in the day when those individuals can be out in the community, which brings additional pressures.
I promised to say something about the case law on curfews and its significance. There is an interesting case, which I am sure members of the Committee were able to look at, called Secretary of State for the Home Department v. JJ and others. The important rule is that a curfew that lasts for 18 hours or more contravenes article 5 of the European convention on human rights. In other words, it is a deprivation of liberty and cannot be allowed within the curfew requirements imposed under a control order. However, the court ruled in the same case that 16 hours are permitted. We therefore know through the challenge and the cut and thrust of what has gone on in the courts that 16-hour curfews are permitted. The Home Office, in its own ECHR memorandum that goes with the Bill, states that
“a 12 hour curfew does not constitute a deprivation of liberty.”
The Minister may be happy with 12 hours, but case law seems to provide for 16 hours. However, unless he makes a firm statement in his response to the debate or returns with amendments—if he does not like the ones that I tabled—that more narrowly define what is meant by “overnight”, we cannot be sure.

Stephen Phillips: I am listening to the right hon. Gentleman’s powerful remarks with great interest. The position of the Labour party, as I understand it, is that there is no difference between a curfew and an overnight residence requirement. He has just told the Committee—correctly, I think—that as a matter of law, a curfew can last for 16 hours. How long does he think “overnight” is? Does he agree that it is certainly not 16 hours? If so, is it not also correct that an overnight residence requirement is different from a curfew?

Paul Goggins: My contention is that any definition of “overnight” that applies under the legislation should be a reasonable person’s view of what “overnight” means. I will come on to that in more detail in a minute. I do not know any reasonable person who thinks that “overnight” lasts for 16 hours. A residence requirement will therefore inevitably be shorter than 16 hours, which means a greater risk and a greater challenge to the police and the Security Service.

Stephen Phillips: I am extremely grateful for that. I see the shadow Minister nodding, but it follows from that that the point he made when he opened the debate on the amendments—that there is no difference between an overnight residency requirement and a curfew—is wrong. The right hon. Gentleman’s argument has just undermined that point.

Paul Goggins: No. The principle is the same. In other words, someone is required to be in a specific place for a specific period. That is a curfew, and that will apply under the overnight residence requirements. My argument, which is crucial to the debate, is that on any interpretation of “overnight”, it will mean fewer hours covered, which will mean more hours for the suspect to be in the community, leading to a bigger risk and a bigger challenge for the Security Service and the police. Frankly, I say to the hon. and learned Gentleman and others that they need to weigh very carefully the balance of that risk, because if they support the ill-defined overnight residence requirement—if they tie the hands of the Secretary of State and perhaps make it impossible for her to put the hours she ideally wishes into an overnight residence order—they tip the balance of risk in a way that is not helpful to the public or to the police and security services.

Stephen Phillips: I am extremely grateful to the right hon. Gentleman for giving way a final time. In the context of this debate, I want to make the point that Members of all parties in Committee take very seriously their responsibility for what the Bill seeks to achieve. I am sure that he did not intend to suggest otherwise. My interventions seek only to show—it is obvious to everyone in Committee—that the argument deployed by Opposition Front Benchers that there is no difference between a curfew under a control order and the overnight residence requirement is incorrect, as his argument has just revealed. That was my only point; I take my responsibilities as a member of the Committee very seriously.

Paul Goggins: Let me clear that up straight away. I do not question the integrity of the hon. and learned Gentleman or that of his hon. Friends in weighing up the issues. In fact, every member of the Committee is absolutely focused on managing risk and doing so by balancing the need for civil liberties with the need for collective public security. I have said that several times on Second Reading and in Committee, but I repeat it. I made that remark because the balance of risk crystallises around such issues, but in raising that matter I did so for all members of the Committee, not only Government Members.

Hazel Blears: This is an important debate, on which I am sure that we are all concentrating intensely. As has already been said, the curfew provisions in the Bill are reduced—they will be lesser and the risk will be greater—and the argument is about whether we have enough resources. I do not know what my right hon. Friend thinks, but I am at a loss to reconcile those provisions with the Legal Aid, Sentencing and Punishment of Offenders Bill, which will increase curfew provisions for people subject to a sentence from 12 to 16 hours, which appears to be utterly inconsistent. People have pointed out that there will have been convictions in such cases, but the point is about managing risk. Why is dealing with some of the most dangerous people in the country entirely different?

Paul Goggins: My right hon. Friend makes the interesting point that the Government are prepared to introduce conditions for community sentences, which by definition will be applied to people who are not regarded as a serious threat to the community and have not committed a heinous crime, otherwise they would be sent to prison. Those who are regarded as an acceptable risk to the community can be put on a curfew of up to 16 hours—
 Ben Gummer  rose—

Paul Goggins: Just one second, and then I will happily give way to the hon. Gentleman—it is good to see such enthusiasm developing on all fronts in Committee.
On the other hand, however, someone whom the Home Secretary regards as so dangerous to the people of this country that she will go to the exceptional extent of making a TPIM or a control order will have a shorter curfew.

Ben Gummer: I am deeply troubled by how the hon. Gentleman is making his argument and by the intervention of the right hon. Member for Salford and Eccles. There is a fundamental distinction between punishment, sentencing and conviction, and managing risk in the circumstances of the 12 people about whom we are talking, which is why we are having this discussion. The beginning of all totalitarian regimes is when people start to see criminal justice in the context of managing risk as opposed to convicting for offences.

Paul Goggins: Perhaps we are back to philosophy, and I suspect that such differences of opinion will run throughout our deliberations. This is probably not relevant, but I make the point that some people who are subject to control orders have already been convicted of very serious offences in the past and have a track record of being an immense threat to the public. Why should someone on a TPIM who represents a huge risk to public safety be on a less stringent curfew than someone who has committed a less serious offence and is not regarded as a risk to the public? I know where my constituents would land on that one.

Tom Brake: I am sure the right hon. Gentleman’s constituents would also take into account the wide range of additional measures that are applied to someone subject to a TPIM. They are not simply held under an overnight condition; they are also subject to the exhaustive list that his hon. Friend the Member for Bradford South quoted in his opening remarks.

Paul Goggins: No doubt adding to the complexity of the task facing the police and the Security Service in monitoring the conditions and the behaviour of the suspect. I think that the hon. Member for Ipswich wanted to intervene, but he might have given up on me.

Julian Huppert: I have not quite given up on the right hon. Gentleman yet, but can he clarify his position—it may be that of the Labour party—that there is no categorical difference between someone who has had a trial, has had an opportunity to mount a defence and has been convicted, and someone who has not had a standard trial, has not had an opportunity to mount a full defence and has not been convicted? Can he see no huge categorical difference between those two cases?

Paul Goggins: I can well understand that if someone was the subject of an antisocial behaviour order, it would be wholly disproportionate to have a 16-hour curfew. If they were running amok in their community, causing mayhem, and needed to be dealt with, I would accept a 16-hour curfew.

Hazel Blears: Twelve hours.

Paul Goggins: Indeed. My right hon. Friend says that 12 hours would be more appropriate.
On TPIMs, these are people about whom we have intelligence and information, that we cannot put through the court process and prosecute successfully. We have to deal with that in a serious way.
 Dr Huppert  indicated dissent.

Paul Goggins: The hon. Gentleman shakes his head, and the differences between us are evident.
I will move on to the issue of the definition of “overnight”, and how a reasonable person might interpret “overnight.” By that, I mean that we will put the decision in the hands of the courts, because they will interpret what a reasonable person would think that meant.
The Committee should briefly reflect on what “overnight” means. I was brought up to believe that there were four times in the day: morning, afternoon, evening and night time. If I reflect on my day today—we will all have had different starting times—I kicked off at 6.30 am, and the morning will come to an end around midday, slightly before the end of our deliberations. If my maths is right, that is a five and a half hour period. People will have their own definition of afternoon. It certainly starts at 12 noon. I would argue that it goes up to 5 o’clock, so that is another five-hour slot.
What do we mean by evening? Here we have a real problem. This evening might last from 5 o’clock to 10 o’clock, because it may still be light at 10 o’clock. That is another five-hour slot. That leaves us with 8 and a half hours as the definition of “overnight,” just by subtracting the other three parts of the day from it.
I have quoted my constituents before, and some of them might have a different definition of how the day runs, but that would be their definition. Who am I to challenge whether that would be a reasonable or unreasonable definition? The Minister will have his own definition of “overnight,” which might have changed somewhat in the past few weeks, as he now has new responsibilities, which he has already demonstrated that he fulfils with great skill and dedication. That dedication will mean that his “overnight” is rather shorter than it used to be.
The definition of evening is difficult, because we can say it ends at 10 o’clock tonight, but we would not say that in December. In December, we might say that the evening began at 4 o’clock and ended at 8 o’clock. Clearly, we have difficulties when we try, in an intelligent way, to define what the reasonable person would mean by “overnight.”
I return to the point that any hour that is not “overnight” is another hour in which the police and the security services must implement surveillance to mitigate the risk that is presented by such people. That is why I have tabled amendments 3 and 4, which suggest leaving out “overnight” and substituting,
“at any time but not exceeding 16 hours in any 24.”
Such a change would reduce the risk and the cost and, crucially, it would reflect the existing case law, which has been hammered out in recent years under the control orders regime.
It will be interesting to hear the Minister’s response to the concerns about the definition—about what we mean by “overnight.” My suggestion is intended to helpful, but if he is not minded to accept removing that term and substituting for it the words in the amendment, it is important that we define in the Bill what we mean by “overnight,” taking a reasonable view across parties.
I have made three further suggestions in amendments 5 to 7. Amendment 5 proposes that “overnight” should mean from 6 pm to 10 am, which would push the definition of “overnight” to the maximum 16 hours. I remind the Committee that the courts have said that a 16-hour period is permitted when imposing restrictions. Amendment 7 proposes a shorter period, 6 pm to 6 am, which is 12 hours. The Home Office itself said that a 12-hour period seemed perfectly in order when it put together its document in relation to the European convention on human rights. In amendment 6, I offer as a compromise—I am trying to be reasonable—the period 6 pm to 8 am, which is 14 hours, and as such is somewhere in the middle.
It will be interesting to hear the Minister’s views, but I suspect that “overnight” is in the Bill to emphasise a concern that seems to be important to some Government Members—that suspects should be able to remain in their own homes, which we shall debate later in our proceedings. I think that “overnight” has been included to reinforce that rather than as a result of careful thinking about how “overnight” would operate in practice.
We should try to carve out common ground when we can in this Committee. I simply make a plea to the Minister to disentangle the two issues. He should strike out “overnight,” but if he is not prepared to do so, he should define it in the Bill. Such a definition would ensure that suspects, the Home Secretary and the courts knew what “overnight” meant and it would reflect case law in the way that I have outlined.

Stephen Phillips: With my new-found reputation as a bruiser, I cannot restrain myself from making a short speech. A number of points have been made by the Opposition in the debate on the amendments. My first point has already been made in interventions from the Government side: the distinction between the measures that the Government propose in relation to amending curfews as part of a sentence for young offenders in the Legal Aid, Sentencing and Punishment of Offenders Bill, which receives its Second Reading tomorrow; and what is proposed in this Bill, which is lesser.
The distinction is, let us say, obvious—I will not say utterly obvious, because I do not want to develop my reputation any further. In one circumstance we are dealing with an individual who has been convicted of a crime and has been subjected to a curfew order for two reasons: first, to protect the public, but secondly, as part of the punishment for the crime for which the conviction has taken place. That is fundamentally different from an order made on an administrative basis under the jurisdiction of the civil courts, which is what the TPIM regime—or indeed, the control order regime—deals with. There is no parity between the two; there is a significant difference between them. There is a substantive reason for the difference between what is in this Bill—whatever the courts ultimately determine “overnight” to mean—and what one sees in the context of the criminal justice system.

Hazel Blears: I am sorry to interrupt the hon. and learned Gentleman so early, but it is important to follow his points as we go along. He makes an important point about the curfew being a punishment following conviction rather than a requirement to control behaviour. In that case, does he agree that when a court imposes a community punishment with a curfew requirement, it is important that the court specifies which element is to be the punishment and whether it is actually about control? If it is about control, there is an inherent contradiction that there is a need to control people guilty of offences more than there is a need to control people about whom we have serious information but cannot prosecute.

Stephen Phillips: I am grateful for the right hon. Lady’s invitation, although I shall not respond to it. Within the context of legislation, as the right hon. Lady will know much better than me, given the previous Government’s interference with sentencing, it is for the courts to set out precisely the elements of a sentence and what they are being imposed for. She will be aware—I certainly am—that whereas it used to take perhaps half an hour to prepare a sentence, as a result of the tick-box exercise that judges and the criminal justice system have to carry out, it now takes considerably longer. As a result, many recorders can get through only two or three sentences in a day, but we used to be able to get through far more. That debate is for another day, but that is another illustration of the inadequacies of the previous Government and their considerable interference in the criminal justice system.

Hazel Blears: I had hoped that the hon. and learned Gentleman was going to redeem his reputation, but I fear that his last comment has just cemented it.

Stephen Phillips: As someone pointed out last week, although we are all working towards the same goals, we are all members of political parties. The right hon. Lady will forgive me if I take as many shots as I possibly can, whether or not she considers them to be cheap.
My second point relates to the hypocrisy—if I may put it that way—in the argument that Opposition Members are developing. The length of a curfew was not defined in the control order legislation that the previous Government introduced, in the same way as there is no definition in relation to the overnight residency requirement in this Bill. However, the Bill has the salutary feature of including the word “overnight”, which makes it clear that, whatever that requirement is, it cannot be the 16-hour period that was the maximum under the JJ case to which the right hon. Member for Wythenshawe and Sale East referred.
The Labour Government sought to impose curfews on controlees, at least initially, for periods of 23 or perhaps even 24 hours in any one day. That was not a curfew, and the courts rightly said that it was not. There is no definition in the Bill, as the right hon. Gentleman says, of what an overnight residency requirement is—that will be for the courts to define in due course—but the Bill is clear that an overnight residency requirement is something less than 16 hours. That is obvious.
 Paul Goggins  rose—

Stephen Phillips: After I have allowed the right hon. Gentleman to intervene, I shall come back to why that wholly undermines the argument put forward by the hon. Member for Bradford South.

Paul Goggins: The hon. and learned Gentleman’s charge of hypocrisy is a little wide of the mark, but that is his judgment. He has just put his finger on an important issue: the control order regime operated with no equivalent of schedule 1. It was for the Home Secretary to decide on the conditions, and those conditions were then tested in the courts. The Government now propose to list the measures, which is very different, so it is important that the Committee is satisfied there are no gaps in those measures because there will be nothing that Parliament, the courts or anybody can do to fill that gap if we let it go through. Does the hon. and learned Gentleman acknowledge that that is the difference?

Stephen Phillips: I acknowledge the distinction that the right hon. Gentleman draws between the mechanism adopted under the previous legislation and that adopted in the Bill. I do not accept the implicit premise of his argument that it would be in some way better for the Home Secretary to be empowered by Parliament to do whatsoever he or she wished, and then subjected only to the restraining influence of the courts months or even years down the line in deciding whether those actions were consistent with the fundamental liberties and rights that this country’s citizens are entitled to expect.
Insofar as the previous legislation gave the Home Secretary carte blanche to do whatever he or she wished, it was effectively an abdication of responsibility by the previous Government and by Parliament. The system proposed in the Bill is much better, in that it involves a list of measures that are deemed necessary by the security services—as the Minister told us, they were involved in the drafting of the Bill—to protect the citizens of this country.
What the right hon. Gentleman has just said wholly undermines the suggestion that the Bill is exactly the same as control orders, or that there is no significant difference between the Bill and control orders. His right hon. and hon. Friends frequently wish to say that the Bill is simply about control orders-lite or mini control orders, but he has just established that the Bill takes a fundamentally different approach. It is therefore right that the Government have introduced the Bill and that we are debating it in Committee. He has managed to undermine two lines of the Opposition’s argument this morning, and I am grateful for both those points.

Paul Goggins: I find neither of the hon. and learned Gentleman’s points persuasive, but I am grateful to him for giving way. I wish to set out not a point of argument, but a point of agreement. If he reads the speech that I made on Second Reading, he will see that I welcomed the fact that Ministers were putting in legislation the measures that should be available, on the basis that we have worked out over a number of years what the courts will accept and what does or does not work, so we should list those measures. I will propose later in our proceedings a mechanism to ensure that there are no unforeseen circumstances in which the Home Secretary could not implement conditions that she thought were necessary. I concur with the hon. and learned Gentleman that it is wholly welcome that the measures are in the Bill, but it is job of this Committee to ensure that there are no holes in those measures.

Stephen Phillips: I am grateful for that clarification, and I agree with the right hon. Gentleman that the function of the Committee is to ensure that there are no holes in the Bill and that it is consistent with the balancing exercise that we all know has to be undertaken.
 Paul Goggins  indicated assent.

Stephen Phillips: I see the right hon. Gentleman nodding, so I think that that is common ground between us.
I have already made my third point in an intervention, so I will keep it short. I want to underline the fact that the argument deployed by the right hon. Gentleman about the need to create a definition of “overnight” wholly undermines the argument of his Front-Bench colleague, which was that there was no difference between a curfew and an overnight residence requirement. It is now perfectly obvious to everyone in the Committee, as it will be to anyone who reads Hansard, that “overnight” means fewer than 16 hours. That is obvious as a matter of language, and it is the argument that he deployed. It therefore follows, as night follows day—if I can be forgiven for using that expression—that the regime that the Bill will introduce is different and a fundamental change.
When the hon. Member for Bradford South opened the debate, he said that the Bill would lighten the grip. He quite rightly spoke of the need to strike a balance between civil liberties on the one hand, and controlling the behaviour of those who are presently subject to control orders on the other. Aside from stating that there was no difference between an overnight residency requirement and a curfew, which we now see to be entirely wrong, he seemed to be arguing that the Opposition are concerned that the Bill goes too far in the direction of civil liberties, and that no measures can be put in place to mitigate effectively the risk associated with the change from control orders to TPIMs. I am afraid to say that he seemed be making a party political point by suggesting that Labour Members were in some way more concerned with the security of this country’s citizens than those who sit on this side of the Committee. First, that is obviously wrong, but, secondly, the logical stopping point of that argument—if the hon. Gentleman truly believes it to be right—is that under the previous Government’s legislation, there was nothing to stop them from making derogating control orders that would have incarcerated those subject to control orders. If he is arguing that the public needs the maximum protection, I assume that the Labour party’s position is that we should retain the control order regime and just lock up people who have never been convicted—[Interruption.] That is the logical—

Lee Scott: Order. Can we not argue across the room, please?

Stephen Phillips: That was the logical stopping point of the argument developed by the hon. Member for Bradford South when he opened this debate, and it is most regrettable. He deployed two arguments—one has been shown to be wrong and, in my judgment, the other has been shown to be at best unwise, but quite possibly far worse.

James Brokenshire: Good morning, Mr Scott. Our consideration of the Bill has continued in the robust way in which it commenced last Thursday. Anyone looking at our proceedings will say at least that proper scrutiny has been applied today, which is important given the nature of the issues highlighted.
I welcome the acceptance by Opposition Members of the range of measures in the schedule and of the fact that the Bill defines the scope of the restrictions that can be applied. In that context, I especially welcome the comments of the right hon. Member for Wythenshawe and Sale East. There has also been a recognition of the differences between the existing control orders regime and the new TPIMs regime under the Bill. The Opposition have at times tried, as a debating point, to characterise the new regime as the same, but we have established that it will be different, which is helpful to our consideration.
We have issues with some points made by Opposition Members. They need to take care when drawing a distinction between a civil preventive regime and a criminal regime under which someone is brought before the courts and convicted on criminal standards. We have revisited several themes that arose on Thursday, so I make no apology for again citing the words of the Leader of the Opposition:
“we must always remember that British liberties were hard fought and hard won over hundreds of years. We should always take the greatest care in protecting them. And too often we seemed casual about them.”
I gently suggest to Opposition Members that some of their comments suggested that they might be casual about fundamental distinctions between the criminal law and those protective measures that may be required on a different basis through the civil courts and within a civil framework.
An important distinction about our overarching liberties has to be made—whether or not it is philosophical, I do not know—and it is one of the fundamental tenets of our democracy and of what we believe as a country. If there is a suggestion that we are going to erode that distinction or to conflate different regimes, I will resist that as a matter of principle because of the fundamental issues that it raises.

Hazel Blears: The Minister is making an important point, because these issues have troubled all of us for a long period of time, whether we are looking at antisocial behaviour orders, the burden of proof or other issues. I am confused as to why, if the Minister believes that an overnight residence or a curfew—curfews are referred to in the Legal Aid, Sentencing and Punishment of Offenders Bill—is not appropriate where there has not been a criminal conviction, because it is an intrusion into people’s liberties, there is an overnight residence provision in this Bill. We can argue over whether it is 16 hours or 12 hours, but we have a curfew provision in this Bill. The Minister is arguing that in our legal system, it is appropriate to have curfews and other restrictions where we have a criminal conviction. If that is not appropriate where there has not been a criminal conviction, why is there an overnight residence provision in the Bill?

James Brokenshire: The right hon. Lady will know the case law and the legal basis for that better than most people. She will understand some of the fundamental jurisprudence, which distinguishes between punishment and prevention. Her right hon. Friend the Member for Wythenshawe and Sale East elucidated some of the case law around the concept of the deprivation of liberty in the context of a preventive measure. The case law was developed as a result of the distinction between a civil preventive regime, where preventive restrictions may be applied, provided that they do not deprive someone of their liberty and thus stray into the territory of punishment. That is fundamental to the case law that has developed on a range of issues extending beyond control orders.
I want to underline the distinction between punishment and prevention. The law is clear that preventive orders can impose restrictions, provided that they do not stray into issues of deprivation of liberty and punishment, because of the case law and the underlying law. That is why the right hon. Member for Wythenshawe and Sale East highlighted the fact that, when the previous Government sought to impose a curfew of 18 hours, that was challenged as a deprivation of liberty in the JJ case. The right hon. Lady will be aware of the subsequent AP case, where 16 hours was found to be acceptable and did not deprive someone of their liberty, provided that the other conditions attached to it were not significantly onerous. In other words, even that 16-hour curfew was restricted and needed to be looked at in the round, with the other restrictions that might apply.

Paul Goggins: I am listening to the Minister as he guides us through this issue and reflects on case law. He referred to the case which found that a curfew of 16 hours was permitted under the control order regime. His advice to the House on compliance with the ECHR suggests that article 5 would not be engaged by a curfew that lasted 12 hours. We know that the Minister’s position is on a curfew of somewhere between 12 and 16 hours, but no reasonable person’s definition of “overnight” would be anywhere close to that.

James Brokenshire: I suppose that is how we move into the meat of this debate on the difference between an overnight residence requirement and the curfew in the control order regime. At the heart of that debate—this came through in the counter-terrorism review—is the fact that the Government want individuals to lead as normal a life as is possible, consistent with protecting the public. In essence, we are back to our debate last Thursday on how to strike the right balance. It should not be right to force individuals to remain in their home during the day, when people might normally go out to work or to study, but we must ensure that they are in their home overnight, as most ordinary people are, to reduce the scope for involvement in terrorism-related activity. The previous Government were happy to take a different view on where to strike that balance. The curfew could have applied at any time of the day. They could have said 16 hours during the course of the day, rather than at night. It could have been applied flexibly. As we have heard, the concept was not defined in the 2005 Act. Some interesting arguments were deployed on the approach being taken in this Bill.
The overnight residence requirement will be just that: a requirement to spend at least part or the whole of each night at home. We believe that that is entirely compatible with leading as normal a life as possible.

Paul Goggins: I am sorry to butt in, but the Minister has just pointed out something important. He said “part or the whole of the night”. Can he elucidate in what circumstances a terrorist suspect so serious as to be subject to the TPIM not only might have most of the day free to move around the community but would be free to go out during the night?

James Brokenshire: I am sure that the right hon. Gentleman will appreciate that the appropriate conditions attached to any particular person subject to a TPIM will need to be determined in accordance with the procedures in the Bill. He will understand that concept clearly, I am sure, as will his right hon. Friend the Member for Salford and Eccles and his hon. Friends on the Front Bench, even in the context of the control order regime. I do not think that even he is suggesting that under that regime, his party would want an automatic 16-hour restriction on every single occasion. I know that that is not the case. That is the crux of the matter.
Even in relation to the arguments that the right hon. Gentleman has made, not all controlees were on a curfew. That is the point that I seek to make when I use the term “part of the night”. It might be determined in the circumstances for part of the night to be restricted. It might be the whole night, depending on the individual and their circumstances. We seek to retain that flexibility by setting a context in defining the Bill, so we can apply the measures flexibly to individual circumstances according to necessity.
Ultimately, it boils down to balance and degree. I appreciate that there are differences of opinion, and that Opposition Members might wish to take as expansive an approach as possible. We take a balanced approach of looking at the overarching arrangements for surveillance and what support the police and security services will have with additional funding. We want to strike an appropriate balance to ensure that individuals can lead as normal a life as possible, consistent with protecting the public. Members from all parties understand the weight of our duty and responsibility to protect the public, but it sounds as if there is a difference between us as to how we achieve that.

Hazel Blears: In a way, the Minister is going over some of the ground that we covered last week. In one of my amendments, I attempted to set out in the Bill a starting point for considerations of national security and the protection of the public. It strikes me that he is saying that his starting point in framing the legislation is allowing the individual to go about as normal a life as possible, consistent with public safety. Is it his premise that the legislation should be framed around the terrorist suspect’s ability to lead as normal a life as possible, and then around considerations of national security? My amendments, which I did not push to a vote, sought to establish that the starting point should be protecting the public and drawing the balance, as far as possible, to prevent a totally intrusive regime. That may well be a difference between us.

James Brokenshire: Our debate last week and the right hon. Lady’s comments suggest that it is an either/or. I do not accept that it is; it is about looking at the matter in the round. I was struck—this may have been unintentional and I would not wish to cast aspersions—by comments on conflating the criminal with the civil and the issue that was developing. There is a balance to be struck, but it is not an either/or, and I would not like to suggest that she thinks it is. A balance must be struck between collective liberty and individual liberty while protecting the public .

Gerry Sutcliffe: We must pursue the point made by my right hon. Friend the Member for Salford and Eccles—what is the starting point? We have made it clear that the starting point should be public protection, which was the basis of control orders. The measures in schedule 1, which are lightening the grip, ease the position for controlling people who are subject to TPIMs. It is important to understand the Government’s starting point.

James Brokenshire: As I said in my opening remarks last Thursday, the duty of any Government is to protect the public. Draconian, intensive or invasive interventions must be balanced with surveillance, police support and support from the security services. How we achieve that is a matter of judgment. In essence, that was at the core of our debate last Thursday, and of our debate this morning. It is in that context that I have framed my argument.

Stephen Phillips: Does my hon. Friend agree that this is simply a distinction without a difference? The starting point could be: “I need to protect the public. What measures should I take that are consistent with the liberties of everyone in this country?” Alternatively, the starting point could be: “The liberties that everyone enjoys in this country are worth protecting, but I have to protect the public. What measures do I need to take to restrict the liberties of the citizens of this country?” The end point will be the same whichever mechanism is adopted, subject to whichever philosophical view is held about where the balance should be struck. This is yet another example of Opposition Members seeking to make party political capital where there is none to be made.

James Brokenshire: My hon. and learned Friend makes his point effectively. I appreciate that we may have the same debate in the same way on multiple occasions during the course of our discussions. It is probably appropriate to move on, given that we have rehearsed, re-rehearsed and repeated some of these issues on numerous occasions.
 Paul Goggins  rose—

James Brokenshire: I shall give way to the right hon. Member for Wythenshawe and Sale East before addressing a point that he made in his contribution.

Paul Goggins: I look forward to the Minister’s response to my concerns. I shall put a practical point to him. Of course, there must be a balance between individual liberty and public safety—that point drives through this debate and the whole Bill. In schedule 1, the Minister produces a list of measures that will be available to the Home Secretary.
Let me put this scenario to him: the courts, for the sake of argument, decide that “overnight” begins at 9 pm. The Home Secretary has information, from the Security Service and the police about a particular subject’s pattern of behaviour between 6 pm and 8 pm. The Home Secretary wants to ensure that the individual is in their own home at that time. Does the Minister not agree that the provisions relating to overnight residence would not allow her to do so?

James Brokenshire: Again, the right hon. Gentleman needs to understand the context in which the Bill sits. I do not mean that purely in the sense of the other mechanisms and measures that would be available through surveillance and through the work of the police and security services—there are other restrictions in the Bill that limit the activities of individuals, and there are additional tools that may be available to the Secretary of State in such circumstances. It is a question of looking at the context and the individual situations that arise to ensure that we protect the public.

Paul Goggins: It is important that we home in on this issue. The Minister is right that any time spent outside of the residence requirement curfew is an extra period of time that has to be supervised by the security services and the police, but what if their advice to the Home Secretary is that it is incredibly difficult at that time to put the necessary surveillance in place because of circumstances, location or whatever, so they advise that it would be far better if the individual was in their own home? She would not be able to impose that condition. Will the Minister deal with that very practical point? If the security services and police think the solution is that someone should be in their own home at a particular time, that may not be an option because of the measures the Government are introducing.

James Brokenshire: Again, I urge the right hon. Gentleman to look at the comments that we received in relation to this matter. The director general of the Security Service considers that the changes provide an acceptable balance between the needs of security and of civil liberties and that the overall package mitigates risks. We are looking at the steps that the security services and police can take on surveillance. Other powers could, for example, prevent someone from going to a different area. we are seeking to balance the need to protect the public with enabling the civil liberties of the person subject to the intervention measure.

Julian Huppert: I was following carefully the example given by the right hon. Member for Wythenshawe and Sale East. I know the right hon. Gentleman does not want to talk about prosecutions, but does the Minister agree that if someone was repeatedly involved in terrorist activities between, for example, 6 pm and 8 pm every day, it would be relatively easy to try to prosecute them for that?

James Brokenshire: We will ensure that prosecutions are brought and convictions secured, where possible. Given what hon. Members have said, that view is shared and accepted, and that is obviously what we seek to achieve.
I want to deal with the definition of “overnight” and some of the examples that the right hon. Member for Wythenshawe and Sale East put forward. He might disagree with these points, but an overnight delivery service does not commit to an item being delivered at 4 am in the summer, and a person doing a night shift does not get to work a shorter period in summer compared with winter. A degree of common sense needs to be applied, and that is the approach that we are taking. We are framing the restrictions in a way that is appropriate and that will provide the flexibility that we believe is necessary. Opposition Members understand that a preventative regime needs to be applied flexibly.

Paul Goggins: I listened carefully to the hon. Gentleman’s argument about the overnight worker, but the Committee wants to know whether that is a 14-hour, a 12-hour or a 10-hour shift.

James Brokenshire: Ultimately, it will be for the courts to determine. As the right hon. Gentleman will know, a review of each measure imposed on an individual will be undertaken. Clarity will be provided in the specific order given to the individual so that they understand what the restriction might be. We believe that by framing the Bill in its current form and by introducing overnight residence requirements, we will have an important disruptive tool and ensure that we strike an appropriate balance. While I live in hope that the hon. Member for Bradford South will withdraw his amendment, we will have to wait to find out whether that will be the case.

Gerry Sutcliffe: I am grateful to the Minister for explaining the Government’s point of view, even if the definition that he proposes alarms me. The hon. and learned Member for Sleaford and North Hykeham, whom I respect for his expertise as a judge and lawyer, argues that I was trying to say that curfews were the same as overnight residence requirements. I accept what he says, because when the Bill was formulated, I saw it as a political compromise in the way that Lord Carlile and Lord Howard indicated in the evidence sessions. With my years of experience as a politician in the House, I know how political compromises come together, so I saw the Bill as a way of trying to agree two different positions and come forward with a political fix, although I respect the fact that the hon. and learned Gentleman says that that is not the case.
We are now seeing the differences between control orders and TPIMs. One of the benefits of debating a Bill in Committee is that we flush out the relevant arguments and points. However, the Government will have to accept that they have clear political responsibility for changing a system that, despite the fact it had faults, was accepted by the security services as a lesser evil—a compromise—to deal with terrorists who can cause a great deal of harm to our country if left unfettered. We all agree that our civil liberties are hard fought—unsurprisingly, I agree with our leader—and we should protect them whenever we can. However, we are talking about people whom we cannot convict or prosecute for all the reasons that we understand, but who can cause a great deal of harm. The words used in the debate were about as normal a life as possible and ordinary people, but we are talking about not ordinary people, but individuals who pose a significant threat to our society.

Tom Brake: What the hon. Gentleman is saying about these individuals is true in many respects. However, he, like me, might have met people who have had a chaotic life during which they perhaps started dealing drugs and ended up in prison, and then went to northern Pakistan to be trained in terrorist activities and subsequently returned to the UK with a view to undertaking those activities. However, as a result of achieving more stability in their lives, some have abandoned that path and are now, as is the case with a person I met a couple of weeks ago, working proactively against such activity. When people get additional stability as a result of being able to lead a normal life, we sometimes divert them from that path.

Gerry Sutcliffe: I am all for that. Given my constituency, I have met such individuals. No one was more alarmed and concerned than me that the 7/7 bombers came from west Yorkshire, and we wanted to try to find out the background to all that. I would certainly support measures that can get people to do different things, but such a person would not be subject to a control order.
It alarms me when I hear hon. Members, particularly those in the Liberal party, saying that this is about the rights of the individual. I understand that—I understand that a balance has to be struck—but we believe that that balance is moving towards the individual and away from public security.

Tom Brake: The hon. Gentleman might need to talk to the right hon. Member for Wythenshawe and Sale East, who was accusing us of being in favour of much more draconian measures on civil liberties with regard to additional surveillance. Which is it? Can we have some clarity please?

Gerry Sutcliffe: My right hon. Friend the Member for Wythenshawe and Sale East made the significant point that, on surveillance, that is the case, in the sense that the individual does not know what is happening with regard to the proposed surveillance measures. However, the issue is more fundamental than that. The Minister has been very honest in what he has said, albeit not when responding to my right hon. Friend the Member for Wythenshawe and Sale East about the starting point. The coalition Government believe that the Labour Government went too far on control orders, and they have called them draconian and inappropriate for the times we live in. If that is their view, that is fine, but they have to take political responsibility for making these changes.
We have had a good debate—

Tom Brake: Just before the hon. Gentleman finishes, will he make the Opposition’s position on the proposals clear? We have heard on the one hand that TPIMs are mini control orders that will make no difference and, on the other hand, that they present the greatest challenge to our security that the country has ever faced. Will he be clear about which of those two lines of argument he has adopted?

Gerry Sutcliffe: It is not the Opposition’s job to be clear; that is the Government’s job. However, I have to say that the hon. Gentleman is teasing out of me a fear—

Tom Brake: I am trying to tease out an answer.

Gerry Sutcliffe: The hon. Gentleman might have longer to wait for that.
My right hon. and hon. Friends and I fear that the balance is moving in a particular direction about which we are concerned. We have tabled amendments to try to obtain an understanding of what is in the Government’s head. We are getting that, but as we do so our fear develops. I accept that the amendments, as drafted, might not do what we want with regard to the difference between a curfew and an overnight residence requirement, but we will have to return to that.

Stephen Phillips: Does the hon. Gentleman intend to move amendment 7? Perhaps calculators in Lincolnshire work differently from those in Bradford South, but 6 am to 6 pm is a 12-hour period, so the amendment does not sit easily with amendments 14, 3, 15 and 4.

Gerry Sutcliffe: The hon. and learned Gentleman tempts me, but I shall not be tempted. He will be pleased to know that we will return to the matter in more detail on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Hazel Blears: I beg to move amendment 24, in schedule 1,page16,line21, leave out ‘must’ and insert ‘may’.

Lee Scott: With this it will be convenient to discuss the following:
Amendment 16, in schedule 1,page16,line24, leave out ‘or an agreed locality’.
Amendment 8,in schedule 1,page16,line24, at end insert ‘or
(c) premises provided by or on behalf of the Secretary of State other than those referred to in (3)(b).’.
Amendment 25,in schedule 1,page16,line25, leave out ‘is’ and insert ‘may be’.
Amendment 26,in schedule 1,page16,line30, leave out from beginning to ‘any’.
Amendment 1,in schedule 1,page16,line31, at end insert—
‘(d) Except that if the individual has his own residence or a connection with a particular locality but is considered to pose a serious threat to the public if he resides there, an appropriate locality is any locality that appears to the Secretary of State to be appropriate.’.
Amendment 17,in schedule 1,page16,line32, leave out sub-paragraph (5).
Amendment 18,in schedule 1,page17,line12, at end insert—
‘(10) The Secretary of State shall have powers to relocate individuals subject to these powers to any appropriate locality.’.
Amendment 128,in schedule 1,page18,line4, at end insert
‘and such a place may include the locality in which the individual has a residence or with which the individual has a connection.’.
Amendment 2,in schedule 1,page18,line4, at end insert ‘or
(c) premises that are the individual’s own residence.’.

Hazel Blears: I shall explain to the Committee the purpose of this large group of amendments, some of which relate to later paragraphs of the schedule. Amendments 24, 16, 8, 25 and 26 would ensure that the Secretary of State may—“may” is an important word in the amendments—impose a requirement for an individual to remain overnight, or at particular times overnight, at a specified address that is not his own residence or one with which he has a connection. Importantly, they would provide flexibility and allow the Home Secretary to act in an appropriate and proportionate way to minimise the risk to the public.
Much of our previous debate was about how the Secretary of State can make the right balance between individual liberty and collective security. To do that, she needs to be able to act appropriately in each individual case. As drafted, paragraph 1(3) states that the overnight residence requirement “must be” imposed on either “the individual’s own residence”—where he lives—or
“premises that are situated in an appropriate locality”.
Sub-paragraph (4)(b) defines that as
“a locality in the United Kingdom with which the individual has a connection”.
I return to the final part of our debate with the Minister about the starting point of the legislation. The starting point of the provisions in the schedule appears to be to allow the terrorist suspect to go about his normal life and, whenever possible, to live at home overnight or in a place with which his family and friends have a connection.
However, I am worried that the provisions say that the specified residence “must be” as set out in sub-paragraph (3). It is totally inappropriate for the Bill to tie the Secretary of State’s hands so that there are no circumstances in which she is able to prescribe a different address for the overnight residence requirement unless, as in sub-paragraph (4)(c),
“the individual has no such residence or connection”.
The only circumstances in which the Secretary of State will be able to provide that such a person should live somewhere other than his home address, or a place with which his friends and neighbours associate, is if that person does not have a local connection. I contend that if we are serious about getting the balance right and providing the Secretary of State with a range of options to protect the public and the rights of the individual, debarring her from providing for an overnight residence anywhere other than the suspect’s own home is the wrong premise for the Bill.

Bob Stewart: I have looked at the provision carefully, too. It seems to me that there is a balance. The individual’s liberty to be in the area that they know is accepted, but the provisions give the Home Secretary the right to choose and enforce a position in a locality, whatever a locality is. I understand that it might be a borough. The Home Secretary will be able to say, “You have to live there.” That might be quite a good way to pin someone down to a place where it is easier and more convenient for the security services to keep an eye on them. That is how I read the measure at the moment, but perhaps the right hon. Lady has a different view.

Hazel Blears: We will hear from the Minister what he considers a locality to be. I am sure that the hon. Gentleman will be aware of the case of CD, in which such issues were explored in detail. Later I will cite some quotes by Mr Justice Simon about that case, which involved a relocation from the whole of Greater London, as it was realised that simply confining the person to Greater London would not have given the required degree of protection.
All that I am asking for through the amendments is a “may” instead of a “must” so that the Home Secretary has the discretion to make such a decision, if necessary. In nine cases out of 10, it might well not be, but I would not like to be the author of legislation that precludes that possibility in every single case. That is badly framed legislation that will expose us to unnecessary risk. The Home Secretary could decide in almost every case, “I really want to do this for a local connection,” but there will be the odd case in which, for reasons of security, she will want to go further. We should give her the discretion to do so when that is absolutely necessary.

Stephen Phillips: Or, to put it another way, the right hon. Lady wishes to reintroduce the possibility of a relocation requirement through her amendments. She should be straight with the Committee about that.

Hazel Blears: I do not wish to hide my intention. My amendments absolutely seek to reintroduce a relocation provision. Amendment 128 would do the same through the exclusion provisions. When we return to these matters later, we may have drafted some new clauses, but this was a convenient point for us to have our first debate about the importance of relocation. There was no intention of using smoke and mirrors because I am a very direct individual, as I am sure the hon. and learned Gentleman will appreciate.

Tom Brake: Does the right hon. Lady agree that it is another difference between the coalition and her party? We have come down on the side of an agreed locality, with the extra surveillance that would potentially come as part of that package, and she is coming down, yet again—as she did when in government, so she is being consistent—in favour of internal exile.

Hazel Blears: I have noticed the language that the hon. Gentleman and his party use when considering these matters. Phrases such as “house arrest” and “internal exile” and references to totalitarian Soviet-style regimes have no place in our debate. I think that Members on both sides of the Committee have recognised that we are trying to achieve a balance between collective security and individual liberty. We all recognise that we want to have prosecutions where at all possible and that a control order or TPIM regime is distasteful in many ways, but that is the only solution for an irreducible minimum number of people who pose a serious threat to our country. For the hon. Gentleman to use language such as “internal exile” and “house arrest” demeans the debate.

Tom Brake: Will the right hon. Lady give way?

Hazel Blears: No, I am not inclined to do so; I will press on. The Bill has removed the power of the Home Secretary to require an individual to be relocated from his or her own area, despite the fact that that requirement has been imposed in nine of the 12 control orders that are in existence. It has been described by Lord Howard, the former Home Secretary, as the single most useful power. During his evidence to us last week, he said:
“We have a coalition Government”—
which is a statement of the blindingly obvious, as the hon. and learned Member for Sleaford and North Hykeham might say—and that there is no
“correct answer to where you draw the line and strike that balance. If you ask me my personal view, however, I would have preferred the relocation provisions to have remained.”
During his evidence, Lord Carlile said:
“If an empirical decision has been made that somebody should be relocated and that decision has been upheld by the courts, there is generally a good reason for it. The risk is increased if one person has the relocation condition removed. If nine people have relocation conditions removed and therefore are all able to move closer either to one another, or to their contact to whom they would wish to be close, plainly you are right that there is an increased risk. I do not want to exaggerate that, because they do not all come from London”—
we have explored those issues—
“but some of them certainly do.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 17, Q53 and Q54.]
Lord Howard and Lord Carlile have therefore indicated that the relocation provisions that were available to the Home Secretary are the single most important provision in making sure that the package of measures is sufficient to keep us safe.
Another witness who gave us evidence was Deputy Assistant Commissioner Osborne, who will be charged, together with the security services, with dealing with some of these difficult issues. He said:
“The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult. Where the choice of residence will be and how many people are within an area will affect the complexities, but there are different environments that make policing easier or more difficult. People could choose to live in an area that was difficult to police in normal circumstances, and that would be even more difficult to police in relation to monitoring control order subjects.”
DAC Osborne was remarkably frank with us about the policing challenges that he would face. He went on to say:
“The new freedoms that will be given to individuals will significantly increase the challenges that we have to face, and managing those challenges will increase the resources that we need. The degree to which we are successful in managing them depends on both the extent of the Bill and the additional resources that we get.”––[Official Report, Terrorism Prevention and Investigation Matters Public Bill Committee, 21 June 2011; c. 5-6, Q10 and Q14.]
It is my contention that, if the Committee agrees to my amendment which, by saying “may”, rather than “must”, would allow the Home Secretary the opportunity to relocate people beyond their home area, the policing challenge that DAC Osborne outlined starkly and graphically would be reduced. I personally would feel much more confident that we would be able to control the activities of these very dangerous individuals, if the Home Secretary had the discretion to introduce that provision where she thought it appropriate to do so.

Tobias Ellwood: The right hon. Lady makes her case powerfully. However, she is being selective, as was the right hon. Member for Wythenshawe and Sale East, with the words she has taken from Mr Osborne’s evidence. When he was asked to sum up the Bill from a threat perspective, he concluded:
“We are hopeful that we will be able to do our utmost to make sure that the risk does not increase under this new Bill.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 4, Q1.]
He had added the proviso that “additional resources” would have to be provided. The right hon. Lady has not mentioned the fact that the Minister has already made it clear that extra resources will be provided. I think that the business case was submitted only last week. It is disingenuous to have a debate about relocation if we do not consider the other side of the coin, which is the fact that additional resources will be provided to mitigate any increased threat.

Hazel Blears: The hon. Gentleman makes his point and it worries me even more. Deputy Assistant Commissioner Osborne said, “We are hopeful”. I would not want to be in a position of simply being “hopeful” of managing this risk and if we were to give the Home Secretary the discretion to make a relocation order I would be slightly more reassured, and perhaps more than simply hopeful that we were managing the risk appropriately.
We have already had a debate about the resources that are being made available. The figures were given to us by Lord Carlile, who said there would be a cost of £11 million to £18 million per suspect who needs 24/7 surveillance. The Minister has provided extra resources. We cannot go into the figures now, but I would be extremely concerned if there were a large gap between the perceived requirement and the available resources. The last thing that I would do is say to the Home Secretary, “You cannot in any circumstances ever, no matter how dangerous this person is, relocate them away from either his own residence or a locality with which he has a personal connection.” I think it is absolute folly.

Julian Huppert: It is clear that there has been some confusion among Opposition Members about the difference between measures for people who have been convicted and measures for people who have not been convicted. The hon. Member for Bradford South said that there are times when people have to be outside the legal framework, but I am sure that the right hon. Lady would not associate herself with that comment. Can she give us any examples in British law where there is the power to relocate people forcibly, or to impose internal exile, or whatever she wants to call it?

Hazel Blears: We are dealing with terrorism and, yes, it should be within our criminal law. We all agree that, wherever possible, prosecution is our preferred route. It is also the case that we are dealing with a small number of people for whom prosecution is not a possibility. At that stage, we have to engage a range of measures, recognising that these people are involved in terrorism-related activity. We then give the Home Secretary the power to make proportionate and necessary decisions to control these people and their activities, to disrupt them and to surveille them, and to do things that we would never do in normal circumstances where people have committed a criminal offence. We are therefore setting up a regime, because there are things that are extraordinarily dangerous to the people of this country.
There are 12 people on control orders and only 48 people have ever been the subject of control orders in the past six or seven years, and they all pose a serious, sustained threat to the lives of many of our citizens. In those circumstances, we need a regime that gives the Home Secretary enough powers to reassure the public that she is taking the right decisions to enable us to surveille these people to see what is going on, to control and disrupt their activities and to do everything in our power to protect the public. To say from the outset that we will constrain the power of the Home Secretary so that there can never be any circumstances in which she can relocate people away from the danger that they pose is therefore wrong. I will come on to the judgment of Mr Justice Simon, which will help to elucidate these matters perhaps better than I can.

Julian Huppert: The right hon. Lady talks about how dangerous these people are. What I have never understood is why she and the previous Government were so relaxed about those who absconded that we still do not know where six of them are. I know that they did not abscond very recently, but we are still told that there are six people who we have no idea where they are. Why is she not really concerned about that? Why did her Government not do a lot more about that, because it clearly shows that the system did not work if we do not even know where those dangerous people are?

Hazel Blears: Forgive me, but the hon. Gentleman is trying to muddy the waters, perhaps because the point that I am making is weighing heavily on him, as the measure is sensible and proportionate. Yes, there were people who absconded under the orders. As he well knows from our debates, the last person to abscond did so in 2007. Many of the people who were originally subjects of the orders were foreign nationals, some of whom, I recall, absconded abroad. It has not been possible to trace them because they are no longer in this country.
The hon. Gentleman is trying to be a bit diversionary in his comments; I wish he would direct his mind to the matter at hand. Is he comfortable about tying the Home Secretary’s hands so that she can never relocate a suspect? If he is comfortable with that, it is a perfectly proper position for him to take, but I am uncomfortable with that proposition.

James Brokenshire: I hesitate to say this, but we are straying into the previous debate, as the right hon. Lady appears to suggest that there should be no or very limited constraints on the Home Secretary’s power. Will she clarify her position, because she appears to be suggesting that there should be almost no constraints on that power?

Hazel Blears: I think that relocation is one of the more intrusive and stringent measures that the Home Secretary can take. I have no doubt, therefore, that any Home Secretary would weigh up the balance very carefully, because relocation has an impact not only on the controlled person, but on their family, too. I am certainly not saying that there should be carte blanche—there never has been—because all the requirements are subject to review by the court and to judicial scrutiny, which is absolutely as it should be.
I genuinely think that the Minister is a sensible and pragmatic person, so for the life of me, I cannot understand why he is comfortable with the prospect of denying himself and the Home Secretary the ability to take measures in what might be a tiny minority of cases. Why is he comfortable with measures in the Bill that provide that the Home Secretary must put someone in their own home in an agreed locality, where they will have access to friends, associates and all the people with whom, presumably, they associate when they are attack planning? Why is he comfortable with saying that never ever shall the Home Secretary be able to relocate a person? If he is comfortable with that and he has made that provision as a principled decision, he is welcome to it, but I would not be comfortable with having that in a Bill that I introduced.
I shall explain why that is important. It is absolutely the case that networks of terrorists plot and associate together—there is very often close association. In some cases, terrorists have passed instructions, videos, and recipes for bomb making and improvised devices to one another. A number of those people have been relocated. They are all from London, and there is a possibility that they will come back by December, before the Olympics next year, which will be the most spectacular opportunity for al-Qaeda to stage an event. It is incredible that we are in this position.
I refer to the case of CD, because it is important for the Committee to hear an authoritative view that is not simply my own. In that case, Mr Justice Simon explored in helpful detail the situation regarding relocation. He described the circumstances of someone who was to be relocated from north London to a midlands city. He referred to the test that the Home Secretary had to decide on proportionality. He cited Lord Chief Justice Phillips, who said:
“The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity.”
That was a clear test for the Home Secretary to decide.
Mr Justice Simon also made an important argument that several hon. Members have made, saying that the
“obligation that it is necessary to impose may depend on the nature of the…activities”
and
“may also depend upon the resources available to the Secretary of State.”
The judge made the point that he would consider the situation in the round, and that he would look at the measures to be imposed, as well as relocation. He would then look at another package of measures, which might include association and exclusion. He would look at the whole package, then he would look at resources, too, such as surveillance. The judge’s formulation is very helpful, because we are not looking at one requirement in isolation and we are trying to get the balance right.
Mr Justice Simon then looked at the individual case of CD:
“CD has dual British and Nigerian nationality. He was the leading figure in a close group of Islamic extremists based in north London, which included TM and MS. There was an assessment that the group was involved in planning attacks, probably using firearms. CD was present at meetings and a training camp…including those attended by the 21/7 bombers in May 2004 at Baysbrown Farm in Cumbria. He is assessed to have moved to Syria in late 2005/early 2006; and to have undertaken extremist training while he was there. He returned to the United Kingdom on 23 April 2009. The circumstances of his return to this country, as well as the contents of the Port Stop interview on his return to this country, are assessed as indicating that he holds strong Islamist extremist views and has a very high level of security awareness. Since his return CD has made several attempts to procure firearms for potential attack plans, and has held covert meetings with TM and MS in relation to the attack plans. On his return to the United Kingdom and since then he has again been assessed as having a very high level of security awareness.”
We are therefore dealing with an individual who is involved in attack planning, who is trying to procure firearms and who is meeting associates in his area. He appears to be a committed terrorist.

James Brokenshire: I accept the court judgment, but even that judgment refers to the resources and support available to the security services and the police. There are different ways in which risk can be mitigated and an individual can be managed. Although the right hon. Lady appears to rule it out completely, even the court accepted that there were measures that could be used in seeking to manage these issues.

Hazel Blears: The Minister makes my point for me. I am seeking to establish that, in this case, the High Court judge looked at the circumstances in the round and still concluded that relocation beyond Greater London was necessary. He looked at resources and the package of measures that would be there. The Minister needs to be careful not simply to reduce his argument to the fact that he will put enough resources into the system to enable 24/7 surveillance of every person who would otherwise have been subject to the current measures, which he is removing from the legislation. That is a perilous path to tread.
The judge continued:
“So far as relocation is concerned, the assessment is that it is necessary to relocate CD outside Greater London in order to prevent him from conducting covert meetings with his north London based criminal associates. It is considered that a move within Greater London”—
within a locality—
“would be insufficient; and that the distance between Greater London and the specified place would make it harder for CD to communicate with his extremist associates and engage in terrorism-related activity.”
The judge then looked at all the submissions that were made. Having looked at all the evidence and taken into account the impact on the wife and the family, he said:
“There is evidence which supports the conclusion that CD has a background and training which would lead to a justifiably held fear that he would engage in terrorist-related activity based on his strongly held extreme Islamist views. That by itself would not be enough to justify the relocation obligation. However, since his return he has endeavoured to obtain firearms on a number of occasions from a number of associates for the purposes of putting into effect a planned terrorist attack, has held covert meetings with associates in relation to plans to use the firearms as part of this planned attack and has displayed a very high level of security awareness. The latter point is relevant both to his intentions and to his ability to evade the attentions of those who have a duty to prevent him putting his plans into effect in so far as they are able.”
That raises the matter of surveillance. CD’s high degree of security awareness would possibly allow him to evade surveillance by the security services, no matter how intense it might be.
Finally, the judge says:
“In the light of this material, and subject to two points”—
about travel allowance—
“I have concluded that the relocation obligation is a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist related attack.”
I could not have read a more powerful judgment. In certain circumstances, I would want to retain in legislation a power to relocate beyond an agreed locality, where the individual has a local connection. That would enable the Secretary of State to take that course where necessary and proportionate, and where the balance was appropriately struck.

Stephen Phillips: The right hon. Lady makes a powerful point extremely well, if I may say so. She has read from a number of paragraphs in the judgment, but she has not read paragraph 52. I wonder whether she would do so.

Hazel Blears: Paragraph 52 says:
“The fact that MS presently resides in Rochdale is of little weight. He is free to travel to London whenever he wishes.”
MS is not subject to a control order. He was convicted, I think, of benefit fraud and chose to live in Rochdale, away from London, presumably to get away from his benefit fraud. He is one of CD’s associates. Presumably the Home Secretary, on advice from the security services and the police, did not judge at that time that MS was sufficiently dangerous to merit a control order. Clearly, in the case of CD, she did. Those are matters for the Home Secretary. I think that MS is a bit of a red herring. I thought that the hon. and learned Gentleman had got me there, but I have escaped without any damage. Marvellous!
In my view, it is utter folly to ban ever considering relocation. I ask the Minister to think again on that point. I have no doubt that we will all return to it, but if we are to have a regime that gives us the right balance, I cannot think why we would not want at least the ability to provide for relocation.

Paul Goggins: My right hon. Friend makes a powerful argument. Her argument on CD reflects the judgment of Mr Justice Simon. The Minister contends that with additional resources, relocation would not be needed at all. That is his assertion. I do not think that my right hon. Friend is arguing—perhaps she will clarify—that all current relocation cases under the control order regime would have to continue. Perhaps she will reflect on the matter and let the Committee know what she thinks. She might accept the possibility that some of the nine could be placed back in their own homes, given additional resources. The powerful point she is making is that for the Home Secretary to close off any possibility of ever relocating an individual is a step too far. Is that what she is saying?

Hazel Blears: My right hon. Friend, as ever, has summed up the situation. With additional resources, the balance could well be struck properly, and striking the right balance is what I am concerned with. However, simply saying that we will never have the power to relocate is a dangerous position to be in. The Minister is exposing himself to a risk—and not just himself, as it is not a party matter. He is exposing the country to a risk that is not necessary in order to strike the balance between liberty and security, because the power would not be exercised in every single case. It would be a matter of proportionality and discretion.

Tobias Ellwood: I want to go back to what the right hon. Lady said about being pleased that my hon. and learned Friend the Member for Sleaford and North Hykeham did not get her. His point was about the limits of relocation. She mentioned the case of MS and CD. For the sake of clarification, CD was the controlee, the one subject to the control order. He cannot move. MS is CD’s friend. The point that my hon. and learned Friend was trying to stress is that MS is not prevented from moving, even though CD is. MS can travel to London, be a conduit, move goods, communicate and so forth. That is the limit of relocation, and it is what we are trying to challenge.

Hazel Blears: We had a similar discussion last week when we said that it is a matter of prioritisation and that probably about 2,000 people in this country are involved in some kind of terrorism-related activity. The pyramid goes up to the people at the very pinnacle, who are such a threat that it is necessary to subject them to either a control order or a TPIM. Clearly, MS had not been judged by the security services, the police and the Home Secretary to be such a threat, whereas CD was. The judge held that the provision to relocate CD outside Greater London was entirely proportionate and necessary.
I will draw my remarks to a close, because I am conscious of the time. Amendment 128 seeks, again, to introduce relocation by amending the provisions relating to exclusion. That is simply another slightly ingenious way of trying to move this debate forward. On that basis, I ask all Committee members—not just the Minister—whether they are comfortable with a provision that bars the Home Secretary from ever, in any circumstances, providing for relocation. I ask them to think deeply and carefully about that. I and my hon. Friends on the Opposition side of the Committee would not be comfortable supporting such legislation.

Tom Brake: I shall speak briefly against relocation. The right hon. Lady has been frank in saying that that is what she seeks to achieve. On the Government Benches, we have looked at the issue. We accept that, of all the measures under control orders, relocation was probably the most draconian. I do not hesitate to use the word draconian—that is exactly what they were. We have come down to the balance of either allowing someone to stay in their residence, or, if that is not appropriate, in an agreed locality in the area, but with additional surveillance measures. The right hon. Member for Wythenshawe and Sale East may have described our proposals to ensure that people are properly monitored as draconian surveillance measures. That is the decision we have taken.
For some reason, the right hon. Member for Salford and Eccles objected strongly to my using the phrase “internal exile”. I am sure she is familiar with what happens with control orders. The police arrive, presumably in the early hours of the morning—I am not sure whether they arrive with the security services. They say to the person whose house they have just entered, “We are now going to relocate you. You do not have the option of calling a solicitor. We are relocating you to this particular location.” They are taken there immediately. The definition of an internal exile is to be away from one’s home while being explicitly refused permission to return. Internal exile is forced resettlement within a country of residence. I do not think, therefore, that the right hon. Lady can object to my using the phrase, “internal exile”. What I have just described—what happens to individuals who are subject to relocation—is indeed internal exile.
The right hon. Lady’s discomfort may relate to the fact that her leader, on 28 September, said:
“We must always remember that British liberties were hard fought and hard won over hundreds of years. We should…take the greatest care in protecting them. And too often we seemed casual about them.”
She may therefore feel that her position, supporting the reintroduction of internal exile, does not sit particularly comfortably with what her leader has recently said.

Hazel Blears: I am glad the hon. Gentleman has sufficient respect for democracy to enable this to be a debate, as opposed to a tirade. Perhaps he will draw his attention to paragraph 6 of Mr Justice Simon’s judgment, where he refers to the relocation notice that was served on CD. That was to expire a week later, so he had the opportunity to bring the case that he did, which was to appeal against the measure provided for in the control order. We have a British legal system that enables people to be properly represented. There has been no legislation more litigious than the control order legislation. There has probably been more barristers, special advocates and people representing different parties in these cases, no doubt with significant legal fees—[ Interruption. ] The hon. and learned Member for Sleaford and North Hykeham is no doubt welcoming such payments to the legal profession. Goodness me, the hon. Member for Carshalton and Wallington paints a picture so far removed from reality that I fear that he is in the realms of fantasy, and as I said, the language he has used is entirely inappropriate.

Tom Brake: I thank the right hon. Lady for that extended intervention. I was, of course, going to do her the courtesy of allowing her to intervene, although I must point out that she did not allow me to intervene on her earlier when I wanted to pursue the matter of internal exile.
The point that the right hon. Lady makes is not one with which I necessarily disagree. Given her experience, however, I am sure that she would agree that what actually happens in practice is that the police arrive in the middle of the night and tell the person subject to a control order, “You are being relocated now. You don’t have the right to call a solicitor.” It might well be, as she pointed out, that those people subsequently have the right to challenge that, but what happens at that point in time is exactly what I have described. If she disagrees with me, she may want to intervene again.
The coalition Government rightly identified that relocation was one of the most unacceptable measures contained within control orders. We have replaced it with the option of staying either at the same residence, or alternatively at an agreed locality within the area, with the additional surveillance that comes with such a measure. That is the right decision, and I am pleased that the coalition Government are seeking to restore some of those British liberties that were fought for hard and won over hundreds of years. I am sure that the leader of the right hon. Lady’s party would support our position.

Gerry Sutcliffe: I rise to support the amendments tabled by my right hon. Friend the Member for Salford and Eccles and to speak to amendment 16, which would delete the reference to “an agreed locality”.
Our debate has given us the opportunity to talk about relocation. I understand that the hon. Member for Carshalton and Wallington is against that, given that he says that it is the most draconian aspect of control orders, but we do not share his view and it is our right to put forward an alternative. That is why the Minister should look at the point made by my right hon. Friend the Member for Salford and Eccles about inserting the word “may” with regard to the specified residence.
If the legislation states “must”, it will tie the hands of the Secretary of State too much. I believe that the reference to “an agreed locality” does the same thing, because it shifts the balance towards the individual. We have said all along that under TPIMs, and with the new resources that go alongside them, there might be occasions when surveillance can deal with our concerns. However, we believe that the tight way in which the Bill has been drafted could restrict the powers of the Secretary of State in difficult situations. We cannot escape the fact that the people in question are dangerous. Of course we want to offer as much support as possible but, in my view, this must be down to the Secretary of State.
I ask coalition Members to look at the experience of Labour ex-Ministers who unfortunately had to make such difficult decisions and make reference to the Secretary of State. My right hon. Friend pointed out what was said by Lord Howard and Mr Osborne, and such people are, or have been, on the ground dealing with these issues. We think that relocation is an important tool. The requirement in the Bill that the Secretary of State “must” do certain things will weaken her opportunity to protect our citizens. We think that the reference to “an agreed locality” moves the balance the wrong way. A reference to an appropriate locality is fine, because that leaves room for manoeuvre, but it is a step too far if the move has to be agreed by the individual.

Stephen Phillips: I listened with great interest to speech made by the right hon. Member for Salford and Eccles because I know she feels strongly about this issue. Let me tell the hon. Member for Bradford South that I very much respect the ministerial experience in the Labour party. The right hon. Lady and her colleagues know that I have grappled with this issue and thought about it, as I hope was evident from the questions that I asked Lord Carlile on exclusion measures last week. I have come to a different conclusion, however, and I will explain why.
The case of CD is trotted out by the advocates of inserting relocation provisions into the Bill as a classic example of when relocation was necessary. However, it is important to read the case in context, and having read Mr Justice Simon’s judgment in its entirety, two things occurred to me, one of which I tried to draw to the right hon. Lady’s attention during my intervention, although no doubt my hon. and gallant Friend the Member for Bournemouth East did that much better than I.
The points about the CD case are threefold. First, it was under the existing control order regime. Mr Justice Simon did not say that relocation provisions are a good thing—quite the contrary. It was accepted by the Secretary of State that control orders interfere with the rights and liberties of citizens. Mr Justice Simon did not say they were a good thing, but rather that they were an acceptable thing in the context of that case. We are now moving to a different regime, so we cannot use the judge’s conclusion on the old regime, and the fact that the measures taken in the case of CD were deemed proportionate then, to say that it is essential to reintroduce relocation into the TPIM regime.
Secondly, having read the case, I am afraid that I did not come to the same conclusion as the judge. As he makes perfectly clear in paragraphs 21 and 52 of the judgment, he decided that MS was not only a known associate of CD, but part of the same group of Islamist extremist terrorists. That group was led by CD, but MS and others, including one gentleman or lady—I know not which—who is referred to as TM, could easily go to Rochdale, to where CD had been relocated. They could take messages there or even, no doubt, procure a firearm in London and carry it to Rochdale. In such circumstances, the efficacy of the relocation order in the case of CD is not necessarily as great as the right hon. Lady tries to portray.

Hazel Blears: I am following the hon. and learned Gentleman carefully. He makes a point about associates who could travel freely because they were not subject to restrictions, but does he remember DAC Osborne’s comments about how the policing environment could be much more challenging if people were concentrated in a locality such as north London? If people have been relocated to somewhere such as Rochdale, where there is not such a concentration of suspected terrorists and the policing environment might be more manageable, as was DAC Osborne’s view, such relocation might be useful in disrupting the association and enabling more effective surveillance.

Stephen Phillips: Of course I heard the evidence of the deputy assistant commissioner, but I am not entirely sure that I followed his argument. If he was trying to make the point that, geographically, it might be easier to monitor suspects more effectively through covert surveillance in a community of less density, that would be one thing, but if he was suggesting that it is somehow more difficult for someone to carry a gun from London to Rochdale than from one part of London to another, I do not accept that for a moment. The ambiguity between which of those two constructs he was urging on the Committee in his evidence is a problem. Irrespective of that, however, my point is that the relocation order against CD was not necessarily nearly as efficacious as the right hon. Lady and her colleagues try to suggest.
The third point on relocation concerns the temptation—even if it is not acted on—in circumstances in which a control order is made for the police and the security services essentially to park the problem. That involves saying that because the control order has effectively mitigated the risk, there is no real need or desire to spend the resources necessary to bring the prosecution that we all think should take place in appropriate cases. The relocation order in CD or any other case seems to emphasise that temptation, which is why I would rather that such provision was not in place.
Notwithstanding the forceful argument made by the right hon. Member for Salford and Eccles, I have considered very carefully—as the hon. Member for Bradford South urged Government Members to do—whether the Bill requires the inclusion of a relocation measure. I have come to the conclusion that it does not. Indeed, I agree with my hon. Friend the Member for Carshalton and Wallington that the relocation order is offensive. It is no more than internal exile, the sort of measure that one found in the former Soviet Union or that one finds in China today. We can read in any number of sources quite how painful that can be for the individuals concerned, especially if they consider themselves not to be justifiably subject to some form of internal exile. One thinks of Alexander Solzhenitsyn, but we could go back and consider the effect of sending Coriolanus into exile for the citizens of Rome. That example provides good evidence that internal exile is a heavy thing for a citizen to bear, and that such a penalty holds great danger for a society that considers it appropriate.
For all those reasons, notwithstanding the powerful speech of the right hon. Member for Salford and Eccles and the support it garnered from her Front-Bench colleague and other Opposition Members—[Interruption]—and also notwithstanding the displeasure directed at me by the Opposition Whip, I will not support the amendments.

Paul Goggins: It is a pleasure to follow the hon. and learned Member for Sleaford and North Hykeham, who made it clear at the outset that he was thinking carefully about the issues. His speech demonstrates that he is doing that, and I am sure that he will continue to do so.
It is important that the Committee should recognise the case that my right hon. Friend the Member for Salford and Eccles was making. It was not that every relocation condition that has been applied to every control order in the past would be necessary in the future, with a TPIM regime with additional resources. I am not even sure whether she would stand or fall in relation to the CD case, given the additional resources, because the Security Service and the police might want to make a different assessment and might come to a different conclusion. The point that my right hon. Friend was making, and the power of her argument, was that to close off the possibility of ever imposing a relocation condition would be to deprive the Home Secretary of an important weapon, or tool—call it what we will—in the kit bag for dealing with the threat posed by that small number of dangerous people. My right hon. Friend made a strong case.
I want to speak about a small number of amendments, starting with amendment 1, which would affect the definition of “appropriate locality”. The “specified residence” must be in the “appropriate locality” and paragraph 1(4) of schedule 1 states that that is a locality in which the suspect’s own residence is located, or, if they have no residence, where they have a connection. If they have neither, it can be any locality that is judged appropriate by the Home Secretary. I want to add a fourth element to that, so that notwithstanding the fact that an individual might have a residence in or a connection with a locality, if the Home Secretary were to judge that there would be so severe a threat to the public if that individual stayed there that it could not be justified, she would have the power to appoint another locality, where the individual would have to reside.
I do not say that the Home Secretary should in every case go first to that fourth condition. I think that there should be a hierarchy, as it is set out in the Bill, and that that would be improved by my amendment. The Home Secretary should start by giving consideration to the individual’s own residence. That should be the starting point, and if the risk can be contained while the individual is living there, he should live there. The next consideration, if that is not possible, would be a locality where there was a connection, and so on, working through the hierarchy. However, to remove the opportunity for the Home Secretary to place an individual in another locality, where they have no residence or connection, on the ground of national security and the public safety, would be a retrograde step.
I repeat that every time a condition is loosened the risk is increased. The risk is countered or mitigated with extra resources, but it is not possible to be sure that it has been completely returned to its level under the control order regime.

Gerry Sutcliffe: While listening to my right hon. Friend, I have been reminded of something that I think he knows—that next year several prisoners convicted of terrorist offences will be out on licence in London. That heightens the risk and makes the relocation power perhaps even more desirable.

Paul Goggins: My hon. Friend makes an important point, and in response I shall make some remarks rather earlier in my speech than I intended. We do not know where all the nine controlees who have been relocated have their own residence. Members of the Committee, or the public, may speculate about that. Let us just assume, for the sake of argument, that most of them, if not all, would reside in the same city if they were returned to their own residence, and let us speculate about the three individuals who are not subject to relocation. What if they happened to be in the city that the nine, eight or seven were going to return to? What if all those individuals were going back not just to the same city, but the same part of that city? My hon. Friend made a powerful point: what if, in that locality, several dangerous individuals, who had been convicted of serious terrorist offences, were released from prison and came back into that community at the same time? My hon. Friend made the point in a very telling way. There would be a very difficult mix, with which the Security Service and the police would have to deal.

Stephen Phillips: I want to deal with the example that the right hon. Gentleman has just postulated. He needs to read all of schedule 1, which contains an exclusion measure. If we are talking about the three who should not associate with the other nine, or the nine who should not associate with the other three, and they all reside in London, we simply exclude London. It strikes a better balance and deals with the issue on which the right hon. Gentleman is addressing the Committee.

Paul Goggins: The hon. and learned Gentleman makes an interesting point, but he might like to look at the answer that DAC Osborne gave to my question about the definition of a community that could apply within the exclusion provisions. His answer leaves me room to question whether excluding people from a city such as London would be seen as a proportionate measure within the terms of the Bill. When we come on to discussing exclusion measures, I will be very interested to hear what the hon. and learned Gentleman and the Minister have to say. I make no bones about it—if the Minister is confident that the exclusion measures could cover a whole city the size of London, or perhaps even a wider area, that would certainly allay some of my concerns. However, the answer that I had from DAC Osborne—I suggest the hon. and learned Gentleman reads it—leaves a lot of room for doubt and concern.
We have already heard about the comments made in evidence by Lord Howard, who, as my right hon. Friend the Member for Salford and Eccles reminded us, said:
“I would have preferred the relocation provisions to have remained.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 17, Q53.]
That is a powerful statement from a former Home Secretary, who is still an authority on such issues. I have probably disagreed with him on many matters over the years, but it was interesting to hear him say that to the Committee so clearly.
Lord Carlile spelled out that one of the main reasons why control orders provide “greater protection” than TPIMs is relocation. The question and answer that was most compelling in relation to relocation was the exchange between my hon. Friend the Member for Newport East and Mr Osborne. It was a short exchange. My hon. Friend asked:
“On that point, of all the measures available to you, is it fair to say that relocation is the most effective?"
Stuart Osborne responded:
“Overall it probably is, yes.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 6, Q18.]
Clearly, the importance of the relocation conditions in the current control orders were very important to him. They are important in the opinion of Lord Howard and of Lord Carlile, who has more independent experience of the issue than anybody else. He held a very strong opinion, as did the police. It is of great concern indeed.
It is not for us to speculate too precisely about the problems that the police and the Security Service may face when there is no power to relocate if the individual in almost all circumstances has to live in their own home. However, as ordinary Members of Parliament or as ordinary members of the public, we might have one or two thoughts about the kind of challenges that the police and Security Service may face. First, by definition the suspect would be on home turf. They would be in their own environment, which they could control. That environment would include other members of the family and people who came to visit. It would include the physical environment of that property, which is a rather important aspect. The Minister will no doubt tell us that the surveillance will involve a very important balance, but all those issues concern me because they again tip the balance in favour of the controlee—the suspect—and away from public safety. It sets the bar—the challenge—for the Security Service and police that bit higher.
I am also reflecting on the kind of areas and communities where personal residencies would be. It could be that there are several residencies within a small area. The community immediately around those premises might not be particularly appreciative of the efforts of the police and the Security Service. That would add enormously to the challenges that the police and the Security Service have to face. It also would not do much for community relations.
We have to be honest. When the Minister says that there will be extra resources that will mitigate the risk, we have to appreciate the circumstances in which the police and the Security Service would have to operate. By definition, if a suspect is not relocated, they have greater access to the terrorist networks that exist. Again, I accept the point that the hon. and learned Member for Sleaford and North Hykeham made: exclusion conditions could be brought in. There could be other conditions to do with association and so on, which would all help—I accept that. Overall, greater proximity to the terrorist networks would produce a formidable challenge for the police and the Security Service.
I have been looking forward to making a positive point to the hon. Member for Cambridge on the issue about which he worries the most: absconding. Will someone who is in their home area, with close associates and the people with whom they are regularly in contact nearby, be more or less likely to abscond from a TPIM than someone who is relocated to some other part of the country where they do not have those associations? My assertion is that the risk of abscondence would be increased by placing someone close to those networks that could secret them away and give them the support they might need, away from the eye of the police and the Security Service. I am not postulating that as inevitable in every case; there will just be a higher risk in that case. That is another challenge that the police and the Security Service will have to meet.

Julian Huppert: I am glad that the right hon. Gentleman shares my concern about people absconding. He made an assertion that the balance would lie one way. I will make another assertion, with as little evidence as him—neither of us knows what would actually happen. People who have been forcibly removed from the areas that they know, where their friends and family are, may have a greater reason to abscond, to get back to try to see some of those people.

Paul Goggins: I suspected that I would not wholly convince the hon. Gentleman. I am not saying with any certainty that any of those risks would apply in any given case. As an ordinary Member of Parliament and an ordinary member of the public, I think those issues have to be considered. I know that the Minister will have carefully considered them, and I look forward to his explanation.
Finally, amendment 2 is a belt and braces job—I am sure the Minister will point that out—and would expressly forbid the suspect from entering his residence. I realise that that could be dealt with in a different way—if necessary, in an exclusion. The point of it, however, was to emphasise to the Minister that we are concerned about the absence of relocation powers and the implications of that for public safety.

James Brokenshire: In the two minutes available to me, I will make a start on winding up the debate and set the context. In the afternoon sitting, we can move on to some of the detail of the points that hon. Members of all parties have made.
At the outset, it is important to note that relocation raises some particularly difficult questions. The counter-terrorism review stated:
“The review considered the issue of proportionality–including the impact that control orders have had on individuals and their families. It found that the more restrictive obligations in particular can have a significant impact on an individual’s health and personal life and their ability to go about their normal lives. The review found that lengthy curfews and relocating an individual to a different part of the country raised particularly difficult issues. The review noted that these issues had to be set against the threat that these people posed to the lives of others in this country or overseas.”
In many ways, that summary—the conclusions of the analysis that was undertaken as part of the counter-terrorism review—sums up this morning’s debate.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four o’clock.